[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



   REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES 
                         DEPARTMENT OF JUSTICE

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 15, 2003

                               __________

                             Serial No. 26

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary

                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                   Crystal M. Roberts, Chief Counsel

                        Paul B. Taylor, Counsel

                     D. Michael Hurst, Jr., Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                              MAY 15, 2003

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Melvin L. Watt, a Representative in Congress From 
  the State of North Carolina....................................     2
The Honorable Jerrold Nadler, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3

                               WITNESSES

The Honorable Ralph F. Boyd, Jr., Assistant Attorney General, 
  Civil Rights Division, Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7

                                APPENDIX
               Material Submitted for the Hearing Record

Civil Rights Division FY2004 Proposed Budget submitted by 
  Chairman Chabot................................................    23

 
   REAUTHORIZATION OF THE CIVIL RIGHTS DIVISION OF THE UNITED STATES 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                         THURSDAY, MAY 15, 2003

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 3:05 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot 
(Chairman of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. This is the 
Subcommittee on the Constitution. And as I mentioned before, 
Mr. Boyd, the votes on the floor have concluded for the week 
and attendance at the Committee meetings has a tendency to be a 
bit lower once the final votes have ended for the week, so 
please don't take that personally.
    This afternoon the Subcommittee on the Constitution 
convenes to review the progress of the Civil Rights Division of 
the Department of Justice for the purpose of reauthorizing the 
Department.
    Since its inception in 1957, the Division has sought to 
protect the civil rights of all Americans by enforcing laws 
prohibiting discrimination on the basis of race, sex, handicap, 
religion, and national origin. We are proud of the 
accomplishments of the Division in combating discrimination in 
areas as diverse as education, employment, housing, lending, 
public accommodations, and voting. Over the years, the 
Assistant Attorney General has played a crucial role in 
establishing Division policy and providing executive guidance 
and direction to further the important work of the Division.
    Beginning in 2001, the Division added 52 new positions, 
which has allowed it to expand its work related to enforcement 
of the Americans with Disabilities Act, the Civil Rights of 
Institutionalized Persons Act, the Voting Rights Act, and its 
trafficking in persons program. As a result, the Division has 
opened 194 percent more CRIPA investigations than were opened 
in 1999 and 2000; the Division has charged, convicted, or 
secured human trafficking sentences at a rate that is at a 300 
percent increase over the Division's related work in 1999 and 
2000; the Division has twice as many pending human trafficking 
investigations than were pending in January of 2001; and it has 
more than doubled the number of formal settlement agreements 
reached under the ADA when compared to the last 2 years of the 
prior Administration.
    Finally, on November 5, 2002, the Department of Justice 
sent 324 Federal observers and 108 Justice Department personnel 
to 26 counties in 14 States to monitor the general election. In 
addition, the entire Washington, DC, office was on standby to 
address any issues that arose, and the U.S. Attorneys offices 
across the Nation were instructed to field calls throughout the 
day. The Department's efforts to ensure that all Americans had 
access to the voting process during last fall's general 
election was its largest effort in 10 years.
    I should also highlight the Division's ongoing work related 
to the terrorist attacks of September 11, 2001, and incidents 
of discriminatory backlash. Since September 11, 2001, the 
Division has investigated nearly 500 incidents of 
discriminatory backlash and has helped coordinate efforts 
leading to approximately 90 prosecutions initiated by Federal, 
State, and local prosecutors. Of the 13 Federal prosecutions 
initiated to date, there have been convictions of 15 defendants 
in 12 of the 13 cases. Indeed, Hussein Ibish, Communications 
Director for the Arab American Anti-Discrimination Committee 
called the efforts of Federal, State, and local law enforcement 
officials since the attacks ``excellent,'' and characterized 
the investigations and prosecutions as ``vigorous.'' Similarly, 
a report released by Human Rights Watch in November 2002 
concluded that ``in many cases, Government officials responded 
quickly and vigorously to the backlash violence.''
    I know that all the Members of our Subcommittee will have 
various questions regarding specific cases and policies. In 
fact, we plan to discuss the Division's extensive involvement 
in the patterns and practice investigation in my community in 
Cincinnati.
    It is important for the Division to continue to play an 
important role in safeguarding the civil rights of all 
Americans. I look forward to examining the Division's work over 
the past year this afternoon. And I would turn now to Mr. Watt 
to see if he would like to make an opening statement.
    Mr. Watt. Thank you, Mr. Chairman. I won't take the full 5 
minutes, but I appreciate the Chairman convening the hearing.
    I am anxious to hear the testimony of Mr. Boyd. And I am 
always anxious to hear what this Administration says it is 
doing in the area of civil rights because the perception in my 
community is that it has taken some major steps away from some 
important principles. So whatever I can be--whatever I can 
hear, particularly from my friend Mr. Boyd, that will help me 
to feel better about that; I want to be the first to hear. So I 
hope that he will make me feel better and that we can do 
something to address this perception in the minority community 
of this Administration's position on affirmative action and 
whatever is going on in Texas at this moment. I would 
especially like to hear something about how we got into another 
round of redistricting off the 10-year scheduled cycle. So if 
he could address those at some point, I would be delighted.
    But I will be happy to yield back in the interest of time 
because I am going to have to get out of here at 4 o'clock to 
get to the airport. So I am going to give him the opportunity 
to say what he has to say rather than listening to me.
    I yield back.
    Mr. Chabot. Mr. King or Mr. Jenkins, either of you 
gentlemen like to make a statement?
    The Ranking Member, Mr. Nadler, is here. Jerry, would you 
like to make a statement? As Mr. Nadler is getting things ready 
up here, I will make the introduction and then we will turn to 
him if that is okay with you, Mr. Boyd.
    Our witness today will be Ralph Boyd, Assistant Attorney 
General for the Civil Rights Division of the Department of 
Justice. Mr. Boyd is responsible for the Department's 
enforcement of the Nation's civil rights laws prohibiting 
discrimination on the basis of race, sex, handicap, religion, 
and national origin in areas that include housing, education, 
voting, employment, and public accommodation.
    Prior to his appointment in 2001, Mr. Boyd served as a 
partner at the Boston firm of Goodwin Procter. From 1991 to 
1997, he served as an Assistant U.S. Attorney in Boston, 
prosecuting firearms, homicides, trafficking, and gang violence 
cases. Mr. Boyd coordinated Operation Trigger Lock, a national 
gun crime prosecution program, and served as a member of the 
Department's Urban Anti-Crime Initiative.
    Mr. Boyd is a recipient of the Attorney General's Special 
Achievement Award. He graduated from Haverford College and 
earned his law degree at Harvard University.
    And we welcome you here this afternoon, Mr. Boyd. And 
before we get to you, I will turn to Mr. Nadler and see if he 
would like to make an opening statement.
    Mr. Nadler. I would indeed. Thank you, Mr. Chairman.
    I want to join you in welcoming today's witness and to 
commend you for scheduling this important and timely oversight 
hearing. The protection of fundamental civil rights is one of 
the hallmarks of the American experiment. Without effective 
protection of our civil rights, many Americans would remain 
consigned to the margins of our society and unable to fulfill 
the promise of this great Nation.
    The ideal of equality and freedom has too often been more 
an aspiration than a reality for too many of our neighbors. 
Indeed the history of the United States is reflected in an 
ongoing struggle to make good on the promises made in the 
Declaration of Independence and the Bill of Rights for 
everyone. In fact, I would say the history of the United States 
is largely a history of the expanding understanding of that 
phrase in the Declaration of Independence where it says that 
all men are created equal. When it was written, the 
understanding was that ``men'' meant men. Women didn't have the 
vote, and no one expected them to. Certainly didn't mean black 
people. Certainly didn't mean Native Americans. Today, at least 
formally, we all acknowledge that it means black people, it 
means women, it means Native Americans, it means people of 
every color, creed, et cetera. We don't live up to that all the 
time, but at least formally we say we mean it.
    It does not yet mean in the conceding of everyone gay, 
lesbian people, and transgendered people. One day our age will 
be looked upon as ancient and barbaric because we still haven't 
recognized that. But one day we will recognize that. The day 
has not yet come. It is still possible for Members of Congress 
not even to pay lip service. It is possible for some Members of 
Congress not to sign statements that say they won't 
discriminate in hiring based on sexual orientation. But that 
day will be regarded eventually as a barbaric day, too, because 
the continuing expansion of our understanding of the meaning of 
the Declaration of Independence will continue is inexorable. 
And to make sure it is inexorable is why we are having this 
hearing today.
    In advancing that cause, the Civil Rights Division has a 
crucial role to play in the enforcement of those rights under 
law. As such, the Division holds a sacred trust in the 
fulfillment of our Nation's core values. However, exercise of 
that trust is the subject of today's hearings. I look forward 
to the testimony and to the opportunity to engage in a dialogue 
with our witness.
    And, again, I thank you, Mr. Chairman.
    Mr. Chabot. Thank you.
    And before we go on, I would ask for unanimous consent that 
all Members may have 5 legislative days in which to revise and 
extend their remarks and to include extraneous material.
    And now we will turn to you, Mr. Boyd, and thank you very 
much.

 STATEMENT OF HONORABLE RALPH F. BOYD, JR., ASSISTANT ATTORNEY 
     GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

    Mr. Boyd. Thank you very much, Mr. Chairman. I appreciate 
the opportunity to be here.
    Mr. Chairman, Ranking Member Nadler, and other 
distinguished Members of this Committee, thank you for inviting 
me to discuss the important work of the Civil Rights Division 
of the Department of Justice. I really do appreciate having the 
opportunity to tell you what the Division is doing, what it has 
accomplished, and of course to answer your questions about our 
work.
    Now, I know that there may be individual issues in cases 
about which the distinguished Members of this Committee will 
have questions or concerns that they may wish to raise. And I 
look forward to addressing those concerns because as I have 
said many times before, I believe that the unvarnished record 
of the Civil Rights Division demonstrates its vigorous and, in 
many instances, stepped-up and, of course, even-handed and 
principled enforcement of our Nation's civil rights laws on 
this watch. And I hope the truth--maybe not necessarily me, but 
the truth of the Civil Rights Division's work--will give you, 
Mr. Watt, comfort and other Members of this Committee, as well 
as America's people, comfort about what we are doing and the 
vigor and commitment with which we are doing it.
    Let me say something, though, at the outset, and that is 
that 99 percent of what we do, that is 99 percent of the hard 
work done by the lawyers in the Civil Rights Division, is never 
discussed, never heralded or criticized in the press, here or 
anywhere else, and that is simply because it is not 
controversial; yet that is very much the work--precisely the 
kind of work, the kind of vigilant civil rights enforcement 
that the American people and Members of this Committee expect 
of us.
    I have said many times before that I am not a person who 
believes that the law and the facts are infinitely malleable. I 
believe and I think our approach bears this out. But I do 
believe that the law and the facts are discernible, the truth 
is discernible, and there are usually right answers and wrong 
ones, good arguments and weak ones, and that it is our job to 
get the right answers and make the right arguments.
    We are lawyers for the United States, and that makes us 
different. As a consequence, our Nation's courts and the 
American people have a right to expect more of us. And I think 
that the way we are conducting ourselves and the vigor with 
which we are doing it and the principal approaches that we are 
taking vindicate the trust that is placed in us.
    With that said, let me offer a brief summary of some of our 
work which reflects the extent to which the Civil Rights 
Division is doing as much as, or more in many instances, of the 
civil rights enforcement work of our Nation than ever before.
    And here are some of the examples of what I am talking 
about. Since the beginning of our watch, our attorneys have 
opened--and you referred to this, Mr. Chairman--investigations 
of 37 nursing homes, mental health facilities, and jails for 
violating the constitutional rights of their patients or 
inmates. That number is an almost 200 percent increase over the 
prior 2 years. In fiscal 2002 alone, we pressed ahead with 173 
cases from 33 different States. We have also charged, 
convicted, and secured sentences for 92 human traffickers in 21 
cases for trafficking victims into the United States, a brutal 
crime marked by kidnapping, intimidation, assault, forced 
prostitution, and forced labor. That is a 300 percent increase 
over the prior 2-year period.
    And we have twice as many current pending investigations as 
I sit here today than we had pending in January 2001. And I 
might also add that just recently our Civil Rights Division 
criminal prosecutors successfully completed a 3-month Federal 
court trial in the District of Hawaii involving over 250 
trafficking victims, most of them vulnerable women from 
Indochina, China, and Vietnam.
    We have also targeted employment discrimination by opening 
65 new investigations in 2002, 14 more than in 2001 and 48 more 
than in 2000.
    We are also targeting disability discrimination by more 
than doubling the number of formal settlement agreements 
reached under the Americans with Disabilities Act compared with 
1999 and 2000.
    Since January of 2001, we have received more submissions 
under section 5 of the Voting Rights Act than ever before. And 
I am happy to report that we never missed a deadline. And we 
have been vigilant in preserving the rights of minority voters, 
as the Voting Rights Act was intended to do. We have launched 
significantly more objections to voting changes submitted to us 
under the Act than were lodged in 1999 and 2000. And we 
litigated or opened five vote dilution cases in the last year 
alone on behalf of Hispanic, African American, and Native 
American voters.
    And in the areas of housing, lending, and public 
accommodations, just in this past year alone we resolved the 
major redlining case in Chicago. That resolution resulted in a 
landmark settlement.
    We have brought a number of exclusionary zoning cases 
involving racial discrimination and disability discrimination. 
And we successfully tried a sexual harassment case in Jackson, 
MS, involving a landlord who took advantage of and assaulted 
mostly African-American and poor women tenants. And we also 
settled, on very favorable terms, a case involving national 
origin discrimination against a major Midwest hotel for its 
handling of an Arab American businessmen's convention in the 
immediate aftermath of September 11.
    These are just a few highlights of the work that we have 
done, Mr. Chairman and Members of the Committee.
    And let me say a few words about our work with respect to 
the enforcement of our Federal criminal civil rights laws, 
especially in the context of the war on terrorism. I know that 
in the wake of September 11 and given the conflict in Iraq, 
many thoughtful people in our country have been concerned about 
our fellow citizens as well as welcomed guests to America who 
may be Muslim, who may be Arab, Sikh, South Asian, or who may 
appear to be Middle Eastern.
    Since September 13, 2001, the Civil Rights Division has 
tracked and targeted what we have been calling backlash crimes, 
working with the 56 field FBI offices and the 94 U.S. Attorneys 
offices across America, and several hundred of the more than 
18,000 State and local law enforcement authorities. And working 
with them, we have investigated nearly 500 incidents since 
September 11, ranging from the attempted fire bombing of a 
Seattle mosque to a conspiracy to blow up a Los Angeles area 
mosque, along with the district offices of one of your 
colleagues, a Palestinian-American Member of this body, to 
another conspiracy involving the stockpiling of weapons and 
explosives for the purpose of attacking a Florida Islamic 
community center, to an outright drive-by shooting and murder 
of an immigrant in the Mesa, AZ, area.
    Through coordinated and combined efforts among Federal, 
State, and local law enforcement authorities, approximately 100 
prosecutions have been initiated, and these prosecutions have 
proceeded in tandem with sustained outreach efforts to 
vulnerable people, and especially to vulnerable and insular 
communities across America after September 11, and also during 
the run-up to the Iraq war.
    And just last February, while all of this was happening, 
our prosecutors, working with our other prosecutors from the 
United States Attorney's Office in Mississippi, convicted 
Ernest Henry Avants, a former member of the Ku Klux Klan, for 
killing an elderly African-American farm worker in 1966. Murder 
cases are often difficult to prosecute successfully when they 
are fresh, but a four-decade-old murder case presents 
difficulties and challenges of a whole other magnitude. But I 
am happy to say, I am gratified to say, that our people were 
more than up to it.
    Mr. Chairman and Members of the Committee, we have been 
busy. Congress has been forthcoming with tools and resources, 
and I am pleased to be able to report that we have been putting 
them to good use. My hope is that this hearing today will help 
us do an even better job of that.
    With that said, I thank you, Mr. Chairman, and I welcome 
the Committee's questions.
    Mr. Chabot. Thank you Mr. Boyd.
    [The prepared statement of Mr. Boyd follows:]

                Prepared Statement of Ralph F. Boyd, Jr.

    Chairman Chabot, Ranking Minority Member Nadler, and other members 
of the Committee:
    Thank you for inviting me to discuss the important work of the 
Civil Rights Division of the Department of Justice. I appreciate the 
opportunity to tell you what the Division has accomplished, answer your 
questions about our work, and listen to your concerns about what I am 
proud to say is our even-handed, principled, vigorous enforcement of 
the Nation's civil rights laws.
    Many offices in many agencies of the federal government handle what 
might be called civil rights issues, but only one office has as its 
sole mission the enforcement of federal civil rights laws across a 
broad spectrum of human activity. We are the ones who prosecute federal 
bias-motivated crimes; who enforce the federal voting rights laws; who 
fight discrimination in education and employment and housing; who 
target state-run nursing homes and mental health facilities that 
mistreat their patients.
    It is a constant, vigilant effort; and it is my unique privilege to 
lead that effort, to serve as the Assistant Attorney General for the 
Civil Rights Division. I truly believe that the laws enforced by my 
Division reflect nothing less than America's highest aspirations: 
America is a place that, more than anything else--and more than 
anywhere else--cherishes the individual's right to find happiness, to 
find fulfillment, be that fulfillment physical or mental, material or 
spiritual. And the core underpinning of that highest priority, the 
central guarantee that each of us will, in fact, be free to pursue our 
dreams, is equal justice under law. That is laws that do not favor one 
race, one ethnicity, or one religion at the expense of another; laws 
that protect the vulnerable and the weak.
    We have those laws. It is my great privilege to enforce them. And 
those laws, enacted again and again by a democratically chosen 
Congress, reflect a people concerned not just with protecting their own 
individual liberties, their own chances to succeed, but who have taken 
up the cause of their fellow man, and so are willing to protect the 
liberty of those who are different from them.
    Justice Charles Evans Hughes once said, ``While democracy must have 
its organizations and controls, its vital breath is individual 
liberty.'' He was right--anyone who doubts it should spend a few days 
in any of the litigating sections in my Division. What they would find 
is civil rights law enforcement conducted with professionalism and 
integrity.
    Those are my watchwords. I came to this job as a former prosecutor 
and experienced litigator and, as my staff is sick of hearing, what I 
do is call balls and strikes--decisions in my Division are made based 
on the law and facts relevant to a given situation, and without regard 
to politics. The Civil Rights Division carries out its enforcement 
mission in a way that is faithful to the law and the factual truth as 
we find it. I will not budge from that principle, ever. And because of 
that, I stand behind every decision this Division has made since I 
arrived nearly two years ago.
    I know there are individual issues, individual cases, about which 
the distinguished members of this Committee will have questions. I look 
forward to addressing them. But let me say something at the outset: 99 
percent of what we do, 99 percent of the hard work done by the lawyers 
in my Division, is never discussed--never heralded or criticized, in 
the press, here, or anywhere else--simply because it is not 
controversial. Yet all of that work is precisely the kind of vigilant 
civil rights enforcement that the American people and this Committee 
expect of us.
    Let me briefly summarize just some of it, to give it a fraction of 
the credit due to the hard working attorneys in the Division. The 
lawyers in the Civil Rights Division are doing more--and more 
aggressive--civil rights law enforcement today than ever before.

          Since the beginning of this administration, our 
        attorneys have opened investigations of 37 nursing homes, 
        mental health facilities, and jails for violating the 
        constitutional rights of their patients or inmates. That number 
        is a 194 percent increase over the previous two year period. In 
        fiscal 2002 alone we pressed 173 cases in 33 states.

          We have charged, convicted, or secured sentences for 
        92 human traffickers in 21 cases for trafficking victims into 
        the United States--a brutal crime marked by kidnaping, 
        intimidation, assault, forced prostitution and forced labor. 
        That is a 300 percent increase over the prior two-year period, 
        and we have twice as many currently pending investigations now 
        than we had pending in January of 2001.

          We have also targeted employment discrimination, by 
        opening 65 new investigations in 2002--14 more than in 2001 and 
        48 more than in 2000.

          We are also targeting disability discrimination by 
        more than doubling the number of formal settlement agreements 
        reached under the ADA, compared with the last two years of the 
        prior administration.

          Since January of 2001, we've received more 
        submissions under Section 5 of the Voting Rights Act (VRA) than 
        ever before, and we've never missed a deadline. And we have 
        been vigilant in preserving the minority voting rights the VRA 
        was intended to protect: we have lodged significantly more 
        objections to voting changes submitted to us under the Act than 
        were lodged in 1999-2000. And we have litigated or opened five 
        vote dilution cases in the last year alone--on behalf of 
        Hispanic, Black and Native American voters.

    These highlights are just a sampling.
    Finally, I would like to report on our efforts in an area that has 
been on the minds of many both in government and the general public 
over the last two years, and that is the treatment in this country, in 
the wake of September 11, 2001, and the war in Iraq, of Arab, Muslim, 
Sikh, South Asian, and other Americans who may appear to be of Middle 
Eastern origin. Since September 13, 2001, my Division has tracked and 
targeted what we have been calling ``backlash'' crimes. Working with 
the 56 FBI field offices, the 94 US Attorneys Offices, and state and 
local authorities, we have investigated nearly 500 incidents since 
September 11, ranging from the attempted firebombing of a mosque to 
outright murder. Through coordinated efforts among federal and state 
authorities, approximately 90 prosecutions have been initiated by 
federal, state and local prosecutors.
    These efforts have borne fruit. Of the 13 federal prosecutions 
initiated to date, we have achieved convictions of 15 defendants in 12 
of those 13 cases.

          Most recently we secured pleas in a Florida case in 
        which a defendant was stockpiling weapons and explosives to 
        launch as assault on a local Islamic community center. That 
        individual pleaded guilty to conspiracy, attempting to damage 
        religious property, and possession of unregistered firearms. We 
        hope to secure a substantial prison term.

          In another recent case, a member of the Jewish 
        Defense League (JDL) was successfully prosecuted for his role 
        in a conspiracy to bomb a mosque and the field office of one of 
        your colleagues--Congressman Issa. Earl Leslie Krugel pled 
        guilty on February 4, 2003, to charges of conspiring to violate 
        civil rights, conspiring to harm a federal official, and bomb 
        making activities. Using an informant within the JDL, the FBI 
        monitored several discussions among Krugel and others in which 
        they discussed destroying mosques and other Arab-American 
        institutions. Sentencing has not yet occurred, but Krugel faces 
        a mandatory minimum of 10 years in prison on weapons-related 
        charges.

    These prosecution efforts have proceeded in tandem with sustained 
outreach efforts to communities affected by these crimes. There is much 
anxiety in our Arab-American communities about these backlash incidents 
and the overall war on terrorism, and we consider it a priority to 
reach out to these citizens, allay fears, and dispel the chronic rumors 
and misinformation surrounding our anti-terrorism efforts. I have 
personally spoken out--over 30 times--in closed door sessions, in 
mosques, in town hall meetings across America against violence and 
threats aimed at vulnerable people and affected communities. My senior 
staff has added to this total, as have numerous other representatives 
from the Department. Overall we have covered more than 250 public 
gatherings over the last two years to discuss publicly the concerns of 
Americans of Middle Eastern origin.
    The Civil Rights Division also coordinates these activities with 
other Department of Justice components including the Community 
Relations Service (CRS). It is worth noting that CRS initiated an 
extensive national outreach program, meeting over 250 times with 
national and local Arab-American, Muslim-American, Sikh-American, and 
South-Asian American leaders throughout the country; and deployed 
conflict resolution specialists to more than fifty communities to 
alleviate racial tensions and address acts of violence against such 
groups. The Division is proud to fight such backlash crimes alongside 
other professionals within the Department, such as CRS.

                               CONCLUSION

    Chairman Chabot, Ranking Minority Member Nadler, I've been 
litigating cases for the better part of two decades, both as a 
prosecutor and as a private lawyer. I can tell you that the quality and 
quantity of civil rights enforcement work coming from the Civil Rights 
Division, during the almost two years I have been there, is exceptional 
by any reasonable measure, and lately, with these efforts has come 
vindication.
    Last November, because of the leadership of Attorney General 
Ashcroft and the efforts of our Voting Rights Section and U.S. 
Attorney's Offices across the country, we had the most trouble-free 
nationwide election in recent memory.
    In February, we convicted Ernest Henry Avants, a former KKK member, 
in federal court in Mississippi, for killing an elderly African-
American farm worker in 1966. Avants, with two others, lured Ben 
Chester White into a forest, shot him multiple times, and threw his 
body off a bridge. All because the man was black. Unfortunately for 
Avants, that forest was federal land, and federal prosecutors in my 
Division finally were able to bring justice where it long had been 
denied.
    Also in February, in Hawaii, after a three month trial, we won a 
jury verdict in the largest human trafficking prosecution ever 
attempted, on behalf of 250 victims from China and Vietnam who were 
enslaved in a garment factory on American Samoa.
    In March, we won a federal injunction barring a Massachusetts 
public school from suppressing religious speech by its students.
    On March 31, the United States Supreme Court validated, in all 
respects, the Division's handling of the Mississippi congressional 
redistricting submission.
    In April, working with the U.S. Attorney's Office in Boston, we won 
a hard fought case to require stadium-style movie theaters to comply 
with the wheelchair accessibility requirements of the ADA.
    But even with these victories, we can always do more, and I am 
committed to doing more. I am reminded almost every day that ordinary 
citizens look to this Division for help--for vindication--be it for a 
racially-motivated murder 40 years ago, or for equal voting rights 
today.
    I hope that today's hearing will help our effort. Thank you for 
permitting me the opportunity to appear before you, and I look forward 
to answering your questions.

    Mr. Chabot. The Members will now have 5 minutes to ask 
questions, and I recognize myself for that purpose. And I thank 
you for being here this afternoon.
    I would like to start by raising a couple of issues related 
to the Justice Department's patterns and practices 
investigation, as I mentioned before, and the ensuing agreement 
in Cincinnati. As you know, many in Cincinnati have become 
disillusioned by the agreement and the mandates being required 
of the police. Much of this comes from what we are witnessing 
on the streets every day. This year, Cincinnati is on a pace to 
have over 80 murders, more killings than at any time in our 
city's history. This follows 64 homicides in 2002, and that was 
a 15-year high, surpassing the 63 people killed the year before 
in 2001, and that was the year that the riots unfortunately 
occurred in our community. All of this has occurred during a 
period in which the city's population has declined.
    These murders are becoming increasing brazen. Earlier this 
month, a shootout took place on Fountain Square, the symbolic 
heart of the city. It occurred on a Friday night when the 
square was crowded and a neighboring restaurant was bustling 
with activity, and one man was killed in the shooting. 
Fortunately, no one else was injured although many innocent 
bystanders were forced to run for cover to avoid flying 
bullets.
    The violence has also reached into almost every 
neighborhood in our city. In mid-April, two individuals started 
shooting at each other from opposite sides of Harrison Avenue. 
And that is in one of the city's busiest arteries. This 
occurred in the residential neighborhood where I happened to 
have lived and raised my family. I lived there for over 40 
years myself. This is unheard of, this type of thing.
    Despite the best efforts of our local police, we have 
witnessed a breakdown in law and order during the past 2 years. 
Not coincidently there is growing sentiment that the agreement 
with the Justice Department may be contributing to this 
dangerous situation. Yet despite these dangerous trends and the 
concerns in the community, it appears that DOJ is seeking to 
put additional restrictions and mandates on the police.
    Over the past 2 months, I have had several discussions with 
Cincinnati police leaders who are very concerned over these 
mandates. One specific concern the police have relates to some 
of the changes in the canine policy, which they feel will put 
the police and the dogs at unnecessary risk.
    But of greater concern has been the DOJ's proposed 
implementation of the ``hard hands'' reporting policy, which I 
am told is being interpreted so broadly as to require a use-of-
force investigation for every instance of physical contact 
between officers and citizens, including incidents as minor as 
grabbing the arm of an disorderly suspect. My understanding is 
that it can take as long as 2 hours to compile the necessary 
information and complete the paperwork to meet these 
requirements, and it requires the involvement of a supervisor. 
That is 2 hours that those officers are removed from their jobs 
protecting the streets of Cincinnati to instead fill out 
paperwork.
    At a time when the murder rate in Cincinnati is at a 
record-breaking high, it is imperative that the police are 
allowed to do their jobs and not be unnecessarily burdened. The 
people rely on our police force to have a presence in our city 
and to ensure the citizens' safety.
    And I have a couple of questions related to this. First, 
could you explain the dramatic rise of the murder rate in 
Cincinnati over the past 2 years, and do you think that the 
Department of Justice's implementation of a patterns and 
practices investigation could have contributed to that 
increase?
    Mr. Boyd. Thank you for the question, Mr. Chairman, and 
thank you for giving me an opportunity to talk about Cincinnati 
because I think it is a case that America has looked to.
    As the Chair knows, law enforcement folks have a tough job. 
And our police officers, especially those who are assigned to 
the urban centers of America, have an especially tough job to 
do. We ask a lot of them. The challenges are great. And by and 
large, the overall preponderance of officers do an excellent 
job of effectively policing our cities in other areas of 
America, and very often they do it quite heroically and often 
far from the public limelight. So I want to recognize that. I 
think it is important for us to understand that.
    Having said that, one of the great things we asked them to 
do is to do an effective job of policing, in making America and 
Americans and visitors to America safe, but doing it within the 
rules. The Attorney General said on many occasions when it 
comes to effectively policing and making America safe, we are 
to think outside the box and do everything we can to make that 
a reality, but we can never think outside the law or the 
Constitution and that is true for all of America's law 
enforcement officers.
    Let me say this specifically about what you described as an 
elevation in the violent crime situation in Cincinnati over the 
course of the last couple of years.
    Mr. Chabot. I hate to interrupt you, but I ask unanimous 
consent for an additional 3 minutes. But my principal 
question----
    Mr. Watt. Mr. Chairman, I don't want to object, but I am 
wondering if we could do the first round and then go back 
because some of us have to leave. And if the people who are 
early on--I am not objecting.
    Mr. Chabot. I will try to keep it within 3 minutes, but let 
me ask you if you could restrain it. Do you think there could 
be a relationship between the agreement and the increase in the 
crime rate and homicides specifically?
    Mr. Boyd. I don't think there is, Mr. Chairman. Or let me 
say this: There shouldn't be.
    And let me also say this about the agreement, because you 
were concerned that the Department of Justice had been 
insisting on things that were much broader than what was agreed 
to in the memorandum of agreement between the Justice 
Department and the city. Let me say this very clearly. What we 
have called upon the city to do is what is clearly and I think 
inarguably required for it to do under the explicit terms of 
the MOA. We enter into those MOAs based on substantial findings 
that we make, and we did that in this case.
    Now, there are some concerns at the implementation stage 
that some of the things that the city agreed to that we talked 
about in great detail in negotiations are more burdensome than 
they thought. And what we have said in every one of these 
instances is we don't think these are unduly burdensome 
requirements. Some of them, including the ``hard hands'' 
reporting policy that you talked about, are done in other 
cities and we haven't received complaints about it.
    But the agreement provides for a process for seeking 
modification. If you want a modification, you have to ask. And 
if they ask, we will consider it in a timely and prompt and 
fair way. And in fact, on that issue of ``hard hands'' 
reporting, my deputies met yesterday with the city, along with 
the monitor, Saul Green, and that issue was easily resolved. So 
we think the agreement--everything in the agreement--is clear.
    What we have insisted the city to do is to live up to its 
word as set forth in the agreement. And where there are 
instances of disagreement or where the city thinks there needs 
to be a modification, there is a process for doing that, and we 
will be fair in our consideration of that process.
    But as I sit here today, I am happy to report that my 
understanding is that all of the outstanding issues are 
resolved on use of force, on reporting, canine policy, and the 
rest. As I sit here, my understanding is that there is no 
disagreement between any of the parties with respect to what 
the agreement requires.
    Mr. Chabot. I think I have 1 minute left, and let me make 
sure I specifically hear you. Relative to the ``hard hands'' 
policy, you met with them and you were willing to discuss some 
alternatives to that. And I think one of the problems was this, 
to go right to the agreement: the term ``hard hands'' means 
using physical pressure to force a person against an object or 
the ground, or the use of physical strength or skill that 
causes pain or leaves a mark. And my understanding is they were 
being told that virtually any contact with the hands would 
require additional reporting. And their big concern is when you 
are filling out paperwork, you are not out on the street 
protecting the public. And I think what we want to be sensitive 
to and concerned about is that we have the police on the 
streets as much as possible, keeping the public safe, not just 
filling out paperwork.
    Mr. Boyd. Mr. Chairman, I can take 30 seconds. Certainly, 
we understand that. However, there were issues with respect to 
the use of force in Cincinnati. That provision didn't make its 
way into the agreement because it was boilerplate. It was there 
because it was carefully calibrated to respond to specific 
aspects of the investigation, a very careful and thorough 
investigation we did there.
    I am happy to say, one of the things we asked the city 
during the negotiations: Do you want to have a sliding scale 
with respect to the extent of investigation depending on the 
modicum of force that was used? In other words, you don't 
necessarily have to use the 2-hour process for an officer 
pushing somebody. You don't have to do the same level of 
investigation you would do with the use of deadly force. And 
that was rejected during the negotiation. The city said no. We 
are fine with the 2-hour process that we use and we will use it 
across the board.
    Now, in the implementation stage--and I should tell you 
that the city responded to their requirements to provide 
revised policies that reflected the policies set forth in the 
MOA--the city was supposed to have done that by last July. And 
as of April of this year, they still hadn't done it. So part of 
it is all of these things can be taken care of at the table 
with cooperation and communication, but what you can't do is 
agree to something that is specifically an agreement--it is 
very clearly set forth in the agreement--not do it, and 
complain about it without raising a request for a modification.
    When that was done here, because the city thought that this 
was too burdensome, we entertained the modification. We met at 
today's meeting, and I understand that there is full agreement 
between the parties with respect to what the MOA requires and 
what the city will do forthwith.
    Mr. Chabot. Not to cut you off, but my time has expired, 
and it is my understanding that the minority side would like to 
recognize Mr. Watt. So he is recognized for 5 minutes.
    Mr. Watt. I thank the Ranking Member for deferring to me in 
the interest of my being able to catch a flight.
    Mr. Boyd, are you familiar with the voting rights section 
203 complaint filed by Texas State Representative Raymond?
    Mr. Boyd. Yes. I believe it was filed and then withdrawn.
    Mr. Watt. The question is, did you or any person in the 
Civil Rights Division or any other person in the Department of 
Justice speak directly with Congressman DeLay or any member of 
his staff about this complaint?
    Mr. Boyd. As far as I know, Representative Watt, absolutely 
not.
    Mr. Watt. What is your Department's policy about section 
203 complaints with Members of Congress?
    Mr. Boyd. When we receive a complaint and we are 
investigating a particular complaint, we try very hard not to 
have discussions with anyone except folks who have material 
information to provide with respect to the complaint.
    Mr. Watt. It is possible that a Member of Congress could 
have material information?
    Mr. Boyd. And we would want to hear from them.
    Mr. Watt. Do you know if Mr. DeLay had any material 
information for anybody in the Department on this complaint?
    Mr. Boyd. I do not know that he did, but I certainly know 
that my Division, as far as I know, didn't have any contact 
with him whatsoever, directly or indirectly.
    Mr. Watt. There was some notion that your Department would 
have the capacity to turn this complaint around in 2 or 3 days. 
I understand that the staffing level in the voting rights 
section has been reduced; is that correct or is that incorrect?
    Mr. Boyd. I don't know that it has been. I know that 
certainly at some point in the near term, Congressman, it would 
make sense to start to think about reallocating some of those 
resources because, as you know, there isn't as big a demand for 
human capital in the voting section.
    Mr. Watt. I understand. I am trying to find out if you have 
reduced it already, and how you would have, in light of that, 
been able to respond so quickly to the complaint.
    Mr. Boyd. To my knowledge, we have not reduced our 
resources. The voting section staffing has not been reduced. 
And there is no resource issue that I know of that would have 
affected our capacity to investigate promptly and make a 
decision promptly on a 203 complaint.
    Mr. Watt. What is the Civil Rights Division's role, if any, 
in what is going on in Texas?
    Mr. Boyd. To my knowledge, at this point we have no role. 
If there were a redistricting plan submitted, Texas is 
certainly a covered jurisdiction, at that point we would do a 
section 5 preclearance review. But certainly with nothing 
having been submitted to us, as far as I know, we have no role. 
As far as I know, there isn't any complaint that is pending 
before us that would give us jurisdiction in any other way 
under the Voting Rights Act.
    Mr. Watt. A little over year ago, I guess it was in May of 
last year in testimony before the Senate Judiciary Committee 
when you were talking about racial profiling, you told the 
Committee that the Attorney General, quote, ``The Attorney 
General has been very clear in saying not only is it wrong but 
it is unconstitutional, and he has tasked Deputy Attorney 
General Thompson with the responsibility of reviewing and 
studying the issue in the context of Federal law enforcement 
with an eye toward us providing some useful guidance about the 
ultimate elimination of racial profiling.''
    I am just wondering where that guidance is a year later so 
we can get on with this.
    Mr. Boyd. Let me answer the question this way. We have been 
diligently and steadfastly--when I say ``we,'' I mean my office 
and the Deputy Attorney General's office--doing precisely what 
I said I would do. And certainly it is my hope and aspiration 
and, I even daresay, my expectation that we will be heard from 
in the near term with respect to both the report and guidance.
    Mr. Watt. In May 2004, I won't have to ask this question 
again.
    Mr. Boyd. If you have to ask that question in May 2004, I 
will feel very badly about it and be enormously disappointed.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from Iowa is recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman, and I thank you for 
holding this important and timely hearing.
    Mr. Boyd, I appreciate your testimony and your responses to 
our collective inquiries. I would just start right off about 
how you have gone through a list of some of the things that you 
have been doing with regard to civil rights. And I would say in 
this fashion, have you investigated or taken any action against 
anyone in America who was a target by a--by a minority? In 
other words, when it works the other way? Is any of that going 
on?
    Mr. Boyd. I can't think of a specific case in which we have 
done that, but I would imagine in the several hundred cases 
that we have done, there may well be one of those cases.
    Mr. Nadler. Would the gentleman yield? There was a 
conviction in Federal court yesterday in New York City on such 
a case.
    Mr. Boyd. The answer would be yes. It would be the Nelson 
case. There was a second verdict returned in the U.S. District 
Court in the Eastern District of New York finding Mr. Nelson, 
an African American young man, guilty of a section 245 
violation, guilty of violating the civil rights of a young 
Jewish student who was killed during a disturbance, now about 3 
or 4 years ago.
    Mr. Nadler. Twelve years ago.
    Mr. King. I thank the gentleman from New York for that 
information. And it is somewhat of an old case, but I think it 
does illustrate that they are extremely rare. And I think often 
we don't focus on the balance of this, which is why I asked the 
question.
    And with the discussion on profiling and racial profiling 
with regard to police work, would you define the difference 
between good police work and racial profiling and what types of 
profiling are permissible under the guidelines that you are 
operating under?
    Mr. Boyd. I don't want to get ahead of myself, but let me 
say this. I would offer this kind of broad outline. It seems to 
me that in the context of routine law enforcement, things like 
traffic stops, motor vehicle contacts between police and 
citizens, that the use of race would be inappropriate, with 
some exceptions. One of the clearest exceptions would be a 
situation where there is a suspect-specific description that 
may include race among other descriptive elements. In the 
context of ongoing investigations of criminal or terrorist 
enterprises where there is very good, trustworthy, reliable 
information that the enterprise--that the criminal enterprise 
or the terrorist enterprise--is of a particular ethnic or 
racially religious character; that is, its membership, its 
known membership, the use of race may be appropriate in that 
instance. But in the overwhelming number of circumstances where 
there is routine law enforcement, the use of race absent some 
specific, trustworthy information about a suspect would be 
generally inappropriate. In other words, it would be 
inappropriate to use race as a proxy for enhanced criminality.
    It is a different situation when there is specific 
information of a racial or ethnic character that is part of a 
description. But generally, to stereotype, to use race as a 
proxy to assume that someone may be more or less likely to 
commit a crime, would be inappropriate.
    Mr. King. And that analysis would apply as well to our 
security, particularly the airline security?
    Mr. Boyd. In the national security context--and I want to 
be careful because I don't want to jump ahead of ourselves--we 
will be speaking with some clarity about this, as I said, in 
the relatively near term. Where national security is involved, 
the Constitution, it seems to me, would be the limit with 
respect to what is appropriate for law enforcement to do.
    Mr. King. In the broad outline in the statement, profiling 
is wrong and unconstitutional; that was brought out in a remark 
here by one of my colleagues, I will just point out a little 
vignette that sticks in my mind. And that is, as I watch a 
young Arab male walk through the security of the airport while 
a 75-year-old lady is taking her shoes off and she is going 
through the searching process, and I wonder how many times that 
multiplies itself over and over again, while we slow down and 
spend billions of dollars trying to reach some kind of a 
utopian version of--I will say--nonracist, nonbiased 
perfection. Would you comment on that, please?
    Mr. Boyd. I will say that this Congressman--I have heard 
that sentiment myself, given that I fly often several times a 
week. I have probably been through as many airports as anyone 
and taken off my shoes and belt as often as anyone. Let me say 
that I think the TSA, I think our Transportation Security folks 
are doing a very good and effective job under very difficult 
circumstances. I think the parameters that they are using to 
figure out, to make some thoughtful assessments, some fair and 
thoughtful assessments about what passengers should get 
additional scrutiny and under what circumstances is working 
well, and I would be reticent to really complain about it.
    Mr. King. I am out of time. Mr. Chairman will we have a 
second round?
    Mr. Chabot. We are not planning on it. The gentleman is 
granted an additional minute if he wants to make another point.
    Mr. King. I have far too many to make.
    Mr. Chabot. Gentleman from New York, Mr. Nadler, is 
recognized for 5 minutes.
    Mr. Nadler. Thank you. I have a number of questions--are we 
going to have a second round? Well, let me ask you first, in 
terms of the voting rights coverage of the Department, last 
year the State courts in Mississippi adopted a reapportionment 
case submitted for section 5 preclearance, and the Department 
had 60 days.
    You mentioned that you always meet your deadlines. The 
Department waited 58 days and then asked questions, this after 
the Ranking Member of this Committee and I had both sent a 
letter asking the Department to do this quickly because time 
was fleeting. The Department wasted or spent 58 days, asked 
questions, and tolled the clock. It then became impossible to 
meet the deadline and the Federal district court took the 
reapportionment plan that had been decreed by the State court 
and threw it out the window, since it hadn't been precleared in 
time, and adopted its own plan, which had a much smaller 
percentage of minorities in the district at issue, and it was a 
great disadvantage to the Democrats--which some people suspect 
may have been the motivation of your Department in the first 
place.
    My questions are twofold, and please answer quickly because 
I have more questions.
    Did you ever issue a decision saying that the plan adopted 
by the State court was okay or not, or was that mooted by the 
fact that you wasted enough time so the Federal court took it 
out of your hands?
    And second, why--what evidence can you give that this was 
not politically motivated in order to kill a more 
Democratically oriented redistricting than the Federal court 
was likely and in fact did subsequently? Why shouldn't we be 
suspicious of the Department's motivation? Did you ever approve 
or disapprove the State plan?
    Mr. Boyd. We did not. As the Congressman I think knows, 
that plan was struck down as unconstitutional. That case was 
argued before the Supreme Court. The Supreme Court upheld----
    Mr. Nadler. It was not struck down as unconstitutional. It 
was said that it hadn't been precleared in time and therefore 
the Federal court had the right to come in with its own. The 
Supreme Court did not rule on the constitutionality of the 
lower court.
    Mr. Boyd. If I can be clear, Congressman, the three-judge 
Federal court in Mississippi declared the plan that was sent to 
us for section 5 preclearance unconstitutional under article 1, 
section 4, of the Constitution. And it made its ruling nunc pro 
tunc, which means it was constitutional--excuse me, it was 
unconstitutional when conceived, unconstitutional when entered 
by the chancery court.
    Mr. Nadler. Correct me if I am wrong, my recollection is it 
was thrown out because it hadn't received timely preclearance.
    Mr. Boyd. That is not correct.
    Mr. Nadler. What were the constitutional grounds----
    Mr. Boyd. That it violated article 1, section 4, which says 
the legislatures of the several States are responsible for 
redistricting in the first instance, and not anyone else.
    Mr. Nadler. And therefore the Federal courts can redistrict 
but the State courts can't?
    Mr. Boyd. The Federal courts can when there is a defect in 
something that the legislature does. So it is a power that the 
Constitution in article 1----
    Mr. Nadler. So State courts anywhere can no longer 
redistrict.
    Mr. Boyd. No. No. The State courts can pass on the 
propriety of what the legislature does.
    Mr. Nadler. If the legislature fails to act, the State 
courts cannot draw their own plan anymore?
    Mr. Boyd. All I can tell you is what the three-judge panel 
said in that case.
    Mr. Nadler. All right. Let me change the subject.
    Today's New York Times has an editorial saying in part, for 
a year and a half, the United States has held hundreds of 
people captured during the war in Afghanistan as prisoners at 
Guantanamo Bay, without access to family, lawyers, or any 
semblance of due process. That does not alter the fact that the 
detentions insult some of our most cherished ideals and harm 
our national interests.
    The Department of Defense has held 600 prisoners, some as 
young as 13. They have been declared unlawful combatants in 
order to deny them the protection of the Geneva Convention. 
They have been incarcerated at a naval base in Cuba to put them 
beyond the reach of the law. A Federal court of appeals, I 
think it was, said that the American courts have no 
jurisdiction because this is, after all, in Cuba.
    So the Administration seems to have put these people in a 
place where the Federal courts have no jurisdiction, they have 
no access to lawyers, they have no rights whatsoever, no habeas 
corpus. Presumably they can take them out and shoot them, and 
no court could say otherwise because the American courts have 
no jurisdiction.
    When is the Administration--what do you say about this 
clear denial of our traditions of civil liberties, and when is 
the Administration going to either fish or cut bait, charge 
these people with a crime or release them?
    Mr. Chabot. The gentleman's time has expired. But I think 
in fairness, I gave myself 3 minutes, so I am going to give the 
gentleman an additional 3 minutes.
    Mr. Boyd. My answer is that they are combatants. And the 
history of the rules of war, international law, domestic law, 
is that foreign combatants are not entitled----
    Mr. Nadler. History is they should be declared prisoners of 
war or given due process. Never heard of this ``combatants'' 
until this Administration.
    Mr. Boyd. They are combatants. They can be detained during 
the pendency of the conflict. They do not have access to the 
courts of the country detaining them. There is not, as far as I 
know, any civilization or society in our history----
    Mr. Nadler. Excuse me. What you are saying applies to 
prisoners of war. The Administration is saying they are not 
prisoners of war.
    Mr. Boyd. Unlawful combatants don't get treated better than 
prisoners of war.
    Mr. Nadler. Doesn't international law require an individual 
hearing?
    Mr. Boyd. I am not an expert on international law, but I 
can tell you this: they are being kept completely consistent, 
as I understand it, with the mandates and requirements----
    Mr. Nadler. How do we know that the Administration is 
telling the truth when it says that, since no one else can 
inspect them, since the courts can't hear evidence of that?
    Mr. Boyd. As far as I know, and again I am probably not the 
best person to direct these questions to, but as I understand 
it, there have been a number of inspections of the conditions 
of the confinement of the unlawful combatants.
    Mr. Nadler. By whom?
    Mr. Boyd. By a number of nongovernmental organizations.
    Mr. Nadler. By the International Red Cross.
    Mr. Boyd. I am not the person to ask, Congressman.
    Mr. Nadler. Let me change the subject.
    Mr. Chabot. Will the gentleman yield for just one moment? A 
bipartisan group of Members of Congress went down to Camp X-
Ray, including myself and a number of Democrats, and we are not 
experts in this as well, but we did look at the conditions. 
There were some concerns about that, and none of us had any 
great concern.
    Mr. Nadler. Reclaiming my time. What bothers me about this 
is this whole doctrine of unlawful combatants is a brand new 
doctrine and we have never heard of it until this 
Administration. And as far as I can tell under this law, they 
can take them out and shoot them, and no court would have 
jurisdiction to object.
    Mr. Boyd. That would violate clear international law.
    Mr. Nadler. As does everything else about this. I have an 
additional question.
    Mr. Boyd. There are principles regarding unlawful 
combatants. And all of these people being detained, as I 
understand it, fits.
    Mr. Nadler. I have to ask you the other question. With 
respect to the Administration in this country is holding people 
in detention without trial, denying access to attorneys, 
inventing the doctrine of unlawful combatants, the 
Administration has made a claim--forget the people in 
Afghanistan. But with respect to one person picked up in the 
United States, an American citizen, the Administration claim 
which it has advanced in a court of law is that the President, 
on his own say-so--realistically on the say-so of some 
bureaucrat below him, because obviously he doesn't investigate 
the case--but the President on his own say-so can declare any 
American citizen an unlawful combatant; that the courts have no 
jurisdiction to question the President's determination; that an 
unlawful combatant has no right to habeas corpus, no rights 
whatsoever, and presumably he can be held in jail forever 
incommunicado based on that.
    Seems to me that that is a claim that no one in an English-
speaking jurisdiction has made since before Magna Carta and 
rebelled against George III, not the current President, but 
against George III for claims much less deleterious to the 
civil rights than that.
    Mr. Chabot. Gentleman's time has expired but the gentleman 
has an opportunity to answer.
    Mr. Boyd. The Padilla case and the Hamdi case, the Padilla 
case in the Southern District of New York, the Hamdi case in 
the Fourth Circuit, have both been resolved by those courts. 
And the Fourth Circuit has said, upon a designation of someone 
as a combatant, supported by certain modicum of evidence, which 
the court reviewed in camera, is sufficient for the detention 
you referred to.
    In the Padilla case, the court did an in-camera review of 
the evidence supporting the certification of Mr. Padilla as an 
unlawful combatant and found it sufficient for his detention 
and also gave Mr. Padilla counsel to assist him in challenging 
the bona fides of that certification.
    So that is what actually happened. I heard what you said, 
Congressman, but that is what happened.
    Mr. Chabot. The gentleman is given 1 additional minute.
    Mr. Nadler. I will be very brief.
    Pursuing that point, the court in New York in the Padilla 
case--I am not concerned with the Hamdi, since he wasn't 
captured in the United States--in the Padilla case, the court 
said that someone could be declared an unlawful combatant on 
some evidence which is much less than probable cause.
    Is it the Administration's view that the writ of habeas 
corpus and that our liberties can be thrown away forever on 
some evidence? In other words, a jilted girlfriend tells the 
FBI agent that you are an unlawful combatant, and in camera 
that is some evidence, and you have no right to an attorney and 
you could be held in jail forever because of that?
    Mr. Boyd. Congressman, I am not the person responsible for 
articulating the Administration's or the United States' 
position with respect to that issue. But let me just say this. 
One of the great, great things about America is that at the end 
of the day the courts decide, and that is what happened in the 
Padilla case and that is what happened in the Hamdi case, and 
both courts found the certification, in both of those cases, 
the unlawful combatant certification, and the supporting 
evidence was sufficient to allow the detentions to go forward.
    Mr. Nadler. The standard was some evidence instead of 
probable cause.
    Mr. Boyd. The court decided, not the Administration, on its 
own. The executive branch--what we do gets reviewed by an 
independent judiciary. That is one of the brilliant features of 
our constitutional democracy.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from Michigan, Mr. Conyers, you are recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman. Before I begin, could 
we review the determination of the Chair that we are going to 
end after my discussion?
    Mr. Chabot. Yes, it is.
    Mr. Conyers. I said can we review it.
    Mr. Chabot. Can we review? I know a number of Members, 
including myself, have flights after this Committee hearing. We 
will certainly give the gentleman leeway if you need additional 
time.
    Mr. Conyers. Well, here is the problem. Everybody is flying 
out, but this hearing was scheduled from 3 o'clock to 5 o'clock 
and it is a few minutes after 4. I can't presume that the Chair 
was going to leave----
    Mr. Chabot. What request is the gentleman making? If you 
have questions, we will give you leeway.
    Mr. Conyers. Just a moment, sir. What I am leading up to is 
that every Member of the panel has asked if there would be a 
second round. And the hearing is supposed to go from 3 o'clock 
to 5 o'clock, as you have indicated. And it is about 5 minutes 
after 4. Do you get it?
    Mr. Chabot. If the gentleman wants to have a second round, 
we can go ahead and consider it.
    Mr. Conyers. That is what I want you to consider because 
everybody here has already asked.
    Mr. Chabot. If the gentleman would like to have a second 
round, and other Members, I have no problem with that. Ask your 
questions.
    Mr. Conyers. Just a moment. I wanted to get the agreement 
before we started, sir. And you have agreed to it, so I want to 
thank you very much.
    Mr. Chabot. Any Members that would like to ask an 
additional 5 minutes for a second round, we will give them that 
option. The gentleman's 5 minutes starts now.
    Mr. Conyers. Thanks Mr. Chairman. I appreciate your 
courtesy.
    Now I want to welcome our leader in the Civil Rights 
Division. I am glad you are here. This is one of the most 
important parts of the Department of Justice, and the staff 
tells me that we have no problems with the authorization 
request in terms of resources in connection with positions and 
amounts of money; is that correct? Do we agree with the 
authorization, the positions, and the authorization amounts?
    Mr. Nadler. I thank the gentleman for yielding.
    I think we have said that--I think we have said that we 
think there should be an increase in the budget to provide for 
more enforcement, but there is a disagreement with the 
Administration on that obviously.
    [4:05 p.m.]
    Mr. Conyers. Okay. Well, I just wanted to get it on the 
record, because that is what this is, is an authorization, 
oversight authorization hearing. So I didn't want to express my 
happiness if the Ranking Member, who has been following this 
with great concern, wants to make that point, I appreciate it.
    Now, the two pieces of business--well, let us start with 
page 5 of your testimony--actually, starts at page 4. And, 
finally, I would like to report on the treatment in this 
country of Americans who may appear to be of Middle East 
origin. My Division has tracked and targeted what we have been 
calling backlash crimes. Could we discuss that term, ``backlash 
crimes,'' for just a moment?
    Mr. Boyd. Sure.
    Mr. Conyers. How do you come about that term?
    Mr. Boyd. We came about that term, Congressman, as a way of 
characterizing essentially threats of violence or acts of 
violence against people who are Arab or Muslim or Middle 
Eastern, or who appear to be, appear to be perpetrators of 
those crimes to be Middle Eastern or Arab or Muslim. And we 
refer to it as a backlash because it is what occurred in the 
aftermath of the events of September 11th and, happily on a 
much smaller scale, during the run-up to the conflict in Iraq.
    So it is a way of characterizing the acts of those people 
who are kind of what I usually call the opportunistic haters or 
bigots who think that the events of September 11th or the 
conflict in Iraq is an excuse to act on their bigotry. So that 
is where the term ``backlash'' comes from. It is a response to 
something else that happened, a quite unlawful and 
inappropriate and immoral one, but a perceived response to 
something that happened.
    Mr. Conyers. I appreciate that very much. And I detect your 
concern about this matter.
    Would you, like your predecessors, all of whom I have 
known, and the one Attorney General, would you consider coming 
to the part of my district that, as you know, has more people 
of Middle East descent than anyplace else in the United States, 
where we could discuss this matter and that you could make it 
clear that this is how you feel about it, and that we could 
make sure you are also aware of the dimension of the problem? 
Is that a possibility?
    Mr. Boyd. Congressman, I would delight in the opportunity 
to come back to your district. You may recall that I was there 
in November of 2001 during Ramadan. I actually did a town 
meeting at the Dearborn Public Library, I think in the 
immediate aftermath of the announcement of the 5,000 
interviews. So I had the real pleasure and opportunity to do 
some learning and some sharing with a whole lot of members of 
the community to which you refer. And in fact, I think at that 
meeting, I think it ran almost 4 hours, I promised to come back 
at some point. So I would be happy to come back.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from New York has a unanimous consent request 
to make, and then we will go into a second round and recognize 
the gentleman for 5 more minutes.
    Mr. Nadler. Thank you, Mr. Chairman. I ask unanimous 
consent that all Members have 5 legislative days to submit 
additional questions in writing to the witness for written 
response.
    Mr. Chabot. Without objection.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chabot. Okay. We will go into a second round. I have 
discussed it with the other Members who at this point have no 
other questions. And so we will recognize the gentleman from 
Michigan for 5 minutes in the second round.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Boyd. So, yes is the answer. Absolutely.
    Mr. Conyers. I am delighted. You make me happier than I 
thought I would be at this hearing. And I see some of your 
staff out there, and we would be happy to have them join with 
you, and you know my staff up here.
    Mr. Boyd. Quite well, Congressman. Quite well.
    Mr. Conyers. And I look forward to, after this hearing, or 
as soon as we can next week, that we reach a date. I would like 
to accompany you out there and be with you. I think it would be 
very important for people to understand the kind of an 
Assistant Attorney General of Civil Rights that goes out and 
meets with the people and shares what is happening here. This 
is, even with all our cameras--and I don't even see one here--
is an inside-the-Beltway proposition. But when you get out 
there, it is very reassuring to people who are some concerned 
and would like to have this person-to-person contact with you. 
And I am so proud of the fact that you have been out there 
already.
    Mr. Boyd. Thank you, Congressman.
    I don't want to speechify on your time, but the outreach 
piece of our backlash initiative efforts has been as 
significant as our law enforcement piece. The law enforcement 
piece has been, you know, the over 500 hate crimes that we 
investigated. But that doesn't even begin to include the number 
of employment discrimination, housing discrimination, public 
accommodation discrimination cases that we have handled in that 
area.
    But it has also been a concerted part of our effort to get 
out into vulnerable communities, not just in your community but 
in Seattle and Houston and elsewhere, where there are 
frightened people. It is our job to get out there and make them 
less frightened.
    Mr. Conyers. Well, I want to thank you again.
    And, Mr. Chairman, I want to applaud you for giving us this 
time to make these kinds of explorations. And I thank you very 
much.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Boyd, we just want to thank you very much for coming 
and giving your testimony and answering our questions this 
afternoon.
    And if there is no further business to come before this 
Committee, we are adjourned.
    [Whereupon, at 4:13 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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               Material Submitted for the Hearing Record

             Civil Rights Division FY2004 Proposed Budget 
                      Submitted by Chairman Chabot





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